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A Human Rights-Based Commentary on UNAIDS Guidance Note: HIV and Sex Work (April 2007)

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A Human Rights-Based Commentary on UNAIDS Guidance Note: HIV and Sex Work (April 2007) A Human Rights-based Commentary on UNAIDS Guidance Note: HIV and Sex Work (April 2007) September 2007 Canadian HIV/AIDS Legal Network 600-1240 Bay Street Toronto, Ontario M5R 2A7 Canada +1 416 595-1666 www.aidslaw.ca Executive summary The April 2007 UNAIDS Guidance Note: HIV and Sex Work (“the Guidance Note”) is inconsistent with previous UN statements on the central importance of respecting, protecting and fulfilling the rights of sex workers in programs and policies related to sex work and HIV. The Guidance Note fails to consider seriously the precarious human rights situation of sex workers, and the way abusive and violent policing and ill-conceived national laws undermine sex workers’ rights. It also fails to discuss the human rights of sex workers as workers, including their right to work, their right to a livelihood of their choosing, and their right to workplace safety. The Guidance Note implicitly rejects UNAIDS’ earlier emphasis on improving the situation of sex workers by empowering them to take control of their work conditions, instead emphasizing alternative livelihoods (but without offering any real-life examples of successful alternative livelihood programs, or discussing the human rights pitfalls of these approaches). The Guidance Note is generally weak on practical measures that should be implemented broadly to ensure universal access among sex workers to comprehensive HIV prevention and treatment services, including sustained access to condoms, lubricant, HIV information and peer education. The document’s focus on reduction of demand for sex work as an HIV prevention strategy is misguided. Criminalizing or otherwise repressing the purchase of sexual services can increase the risks of HIV for sex workers by driving sex work underground and limiting the choice of working conditions and the choice of clients. Advocating for demand reduction is also stigmatizing and departs from what should be a focus on the right of sex workers to work safely and be in control of all aspects of their work. The Guidance Note also ignores the reality of important trends in programming related to sex work, including human rights violations that have been documented in association with “100 percent condom use” programs and “raid and rescue” programs. As these programs are increasingly widespread and well funded, it is incumbent on UNAIDS to provide guidance on mitigating human rights violations linked to them. The document ignores ways in which these programs undermine HIV prevention, treatment, care and support for sex workers, including by undermining successful HIV programs run by sex workers themselves. The document also unhelpfully conflates sex work and trafficking. In earlier documents, UNAIDS showcased as best practices many programs that demonstrated the effectiveness of sex worker empowerment and peer-based program management for HIV prevention and treatment. The Guidance Note seems to back away from a focus on those groundbreaking programs of, by and for sex worker organizations, some of which have advanced the human rights of sex workers well beyond their impact on HIV. Instead, the document takes Canadian HIV/AIDS Legal Network 1 positions that feed into the misguided and dehumanizing idea that abolishing sex work is a useful approach to preventing HIV. UNAIDS now indicates that the Guidance Note will be withdrawn as a public document and made “internal.” We question whether this decision responds adequately to the concerns raised by the Programme Coordinating Board (UNAIDS’ governing body) in June 2007, and we question the closed process that resulted in this document in the first place. We urge UNAIDS to ensure that the problematic human rights issues raised in the Guidance Note are the subject of discussions in which sex workers and sex worker organizations are meaningfully engaged. Canadian HIV/AIDS Legal Network 2 Introduction In June 2007, the Programme Coordinating Board (PCB) of UNAIDS was asked to consider a document entitled UNAIDS Guidance Note: HIV and Sex Work. After discussion in the PCB, including reservations raised by NGO delegates and some member states, the PCB asked that the Guidance Note be reconsidered by UNAIDS with the possibility of revision. The UNAIDS secretariat has since indicated that it intends to withdraw the Guidance Note as a public document and make it an “internal” paper while also opening up a series of consultations on HIV and sex work. This commentary is submitted for consideration by all parties, including both UNAIDS and the UN Population Fund (UNFPA, which is the focal point in UNAIDS for sex work issues) in the revision process on behalf of the organizations listed at the end of this paper. We are concerned that the original April 2007 draft of the Guidance Note is not well grounded in human rights principles or in solid programmatic or policy experience. It also results from a process in which sex workers were not meaningfully engaged. This commentary outlines a number of concerns and makes concrete recommendations for improvements toward policy and program guidance that is truly based on human rights and evidence. Ignoring the centrality of human rights From the beginning of the HIV/AIDS epidemic, the United Nations system and UN member states have, in numerous official statements and documents, underscored the importance to the global AIDS response of respecting, protecting and fulfilling the human rights of persons living with HIV and those who, because of stigma, discrimination and other human rights abuses, are vulnerable to HIV and to being denied treatment, care and support. The United Nations system has also claimed a responsibility to ensure that persons whose circumstances may make them vulnerable to HIV have the opportunity to participate meaningfully in decision-making related to HIV and AIDS programs and policy. Any guidance from UNAIDS on the subject of sex work, then, should first and foremost be a guide to enhancing protection of the rights of sex workers — as women, men and transgender persons, as workers, and as persons with the right to participate meaningfully in decision-making about policies and programs affecting them. In its current form, the Guidance Note does not adequately advance a human rights-based analysis or identify measures that need to be taken to respect, protect and fulfill the rights of those engaged in sex work, including those who are living with HIV. The CEDAW Committee, which oversees the implementation of the UN Convention on the Elimination of All Forms of Discrimination against Women, has noted that many women in prostitution are often vulnerable to violence and Canadian HIV/AIDS Legal Network 3 should enjoy special protection from violence under the law.1 Systematic police violence and harassment against women, men and transgender persons in sex work have been documented by human rights organizations in many settings, including shocking levels of rape of sex workers by police.2 The risk of human rights violations for sex workers is deepened in most countries by criminal prohibitions of sex work or of activities associated with sex work. Criminal prohibitions not only facilitate social stigma and marginalization of sex workers but make it impossible for them to enjoy the protection of the police when they face violence or abuse. On the contrary, these provisions in the law open the door to the harassment, extortion and rape of sex workers by police,3 and they impede access by sex workers to comprehensive HIV prevention and treatment services. It is surprising that the Guidance Note does not concern itself with the vexing and underhanded ways in which national laws compromise the human rights of sex workers in many if not most countries of the world. In many countries, prostitution is legal, but such actions as public solicitation for sexual transactions — which is often very broadly defined — essentially make sex work criminal. In some countries, living off the earnings of a sex worker is a crime, in theory criminalizing sex workers’ spouses or partners and even their children, and certainly threatening the human right of sex workers to marry and found a family. Many jurisdictions limit the use of residences for sex work through antiquated “bawdy house” provisions in criminal codes, which often have the effect of forcing sex workers to work on the street, where they have less control over conditions of their work. Criminal law provisions of these kinds have been shown to undermine the human rights and workplace safety of sex workers, as well as HIV and other health programs meant to benefit them. The impact of repressive laws and policing on sex workers’ access to comprehensive HIV services cannot be overstated. Laws and policies in many countries give the police broad latitude to arrest sex workers — including allowing police to regard possession of condoms as “proof” of prostitution — as well as to displace them from safer or usual workplaces.4 Laws 1 United Nations Committee on the Elimination of All Forms of Discrimination against Women. General recommendation no. 19 (11th session, 1992). Available at http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19. 2 See, e.g., Human Rights Watch, Epidemic of abuse: Police harassment of HIV/AIDS outreach workers in India, New York, 2002; Human Rights Watch, Lessons not learned: Human rights abuses and HIV/AIDS in the Russian Federation, New York, 2004; Human Rights Watch, Rhetoric and risk: Human rights abuses impeding Ukraine’s fight against HIV/AIDS, New York, 2006, all available at www.hrw.org; and Pivot Legal Society, Voices of dignity: A call to end the harms caused by Canada’s sex trade laws, Vancouver, Canada, 2004, available at www.pivotlegal.org. See also Policy Project. Violence and exposure to HIV among sex workers in Phnom Penh, Cambodia. Washington, DC: U.S. Agency for International Development, 2006. 3 See Epidemic of abuse, ibid., and G Misra, A Mahal and R Shah.
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